New skirmish over same-sex marriage

Posted Sat, July 20th, 2013 2:03 pm by Lyle Denniston

Arguing that state officials in California do not have the power to order county clerks to issue marriage licenses to same-sex couples, the clerk of San Diego County has asked the state supreme court to clarify the law and in the meantime to temporarily block clerks from licensing gays and lesbians to marry. The state court petition in Dronenberg v. Brown (docket S212172) is being handled separately for now from a similar challenge earlier by sponsors of the “Proposition 8” ban on such marriages throughout the state.

Although the state’s highest court last Monday had refused to put a hold on further licenses to gays and lesbians, San Diego Clerk Ernest J. Dronenburg, Jr., said on Friday that he wanted to pursue his own request for a postponement until the continuing validity of “Proposition 8” is settled in state courts. His petition argued that he is not bound by a federal judge’s 2010 order striking down that ban, and that state officials cannot order him or other county clerks in the state to obey that order. His view, he said, is that “Proposition 8” is still in effect except for the right to marry won by the two couples who filed the federal lawsuit against it, and the federal order thus does not apply to San Diego County.

The legal arguments in the new forty-six-page petition closely parallel those that are already before the state court in the case of Hollingsworth v. Brown (docket S211990). State officials are to file their written legal arguments in opposition in that case on Monday. Those will be arguments on the merits of the current status of “Proposition 8” in California. State officials contend that the federal order applies throughout the state, and binds state officials. They contend that they have the authority to control marriage licensing policy, in order to keep it uniform throughout the state.

Under a briefing schedule posted by the state court, state officials also are to file by Monday their opposition to the Dronenberg plea for an order temporarily blocking any further gay marriage licenses. Clerk Donenburg has been quoted in the press in California as saying that other county clerks will be making requests like his in coming days.

For now, all of this is playing out in the state supreme court. Aside from refusing a stay request last Monday in the Hollingsworth proceeding, it has given no further indication that it will actually rule on the merits. Before it would do so, it would first have to rule that the new challenges have been properly filed in the state’s highest court, rather than in a lower state court or in the federal court that struck down “Proposition 8.”

The Supreme Court in Washington had before it a case testing the constitutionality of “Proposition 8” but decided that case last month on a procedural point, and that appeared to clear the way for gays and lesbians to get married in the state. A series of legal maneuvers since then by opponents of such marriages has raised some doubt about the state of marriage law in California.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.